Posted on April 22, 2015
California PC § 646.9 | Stalking
Charged under California Penal Code 646.9, stalking occurs when someone willfully harasses or repeatedly follows another making a credible threat with the intent of placing a victim in fear. Arguably over-broad and/or vague, the statute has been upheld despite its constitutional challenges. Not only can stalking be accomplished verbally or in writing, but the law also makes it unlawful to convey a threat via text message, fax machines, email, and audio or video recording. Not often prosecuted, but someone can be charged with “cyber stalking” if they use electronic means of repeatedly sending threatening messages to the recipient.
Typically, stalking is a wobbler, meaning the prosecutor holds discretion when electing to charge someone with either a felony or misdemeanor. Crucial factors that are considered are the defendant’s prior criminal history and the severity of the current offense. Fortunately, someone convicted of felony stalking may become eligible to reduce their felony to a misdemeanor upon successful completion of probation.
In order for the prosecutor to prove someone is guilty of stalking (PC 646.9), the following element must be proven beyond a reasonable doubt:
- You willfully and maliciously harassed or repeatedly followed another;
- You made a credible threat with the intent to place another in fear for their safety.
- Your conduct was not constitutionally protected.
DEFENDING STALKING ALLEGATIONS – PC 646.9
- The government’s case typically is built upon a single witness without any corroborating evidence such as video, photographs, emails, or text messages. Therefore, arguing insufficiency of the evidence is a legitimate offense by arguing the alleged victim is not credit worthy or by bring up factors which would contribute to the alleged victim’s motivation to lie or exaggerate the truth. This approach also ties into being falsely accused requiring a full extensive investigation into the victim’s past history.
- The statute proscribes conduct that must be done with specific intent, thus “repeatedly following” could have occur on accident, or it was unplanned and inadvertent.
- The “credible threat” component of stalking requires that the threat be clear and unambiguous to qualify. Statements such as “I’m going to get you!” are left for interpretation of the recipient which could infringe on someone’s constitutional rights.
- The “fear” element is measured on a reasonableness scale. In other words, would a reasonable person be placed in fear based on the defendant’s conduct. Perhaps the alleged victim is overreacting or is too hypersensitive – both forms are subjective, not objective as required by law.
PUNISHMENT & SENTENCING
Ordinarily, PC 646.9 is punishable by a county jail term of not more than 1 year or by a fine not more than $1,000, or incarceration in the state prison for 16 months, 2, or 3 years. Additionally, the court normally imposes a restraining order barring contact with the alleged victim for a period of up to 10 years. However, there may be additional penalties and exposure depending on the circumstances outlined below.
- Court Order Violation: A person who violates PC 646.9(a) when there is a restraining or protective order in place faces a sentencing range of 2, 3, or 4 years in state prison. An order may be an injunction, TRO, or a condition of probation.
- Prior Conviction: If someone has previously been convicted of felony stalking and subsequently commits another violation, it’s punishable in the state prison for 2, 3, or 5 years.
- Prior Domestic Violence Conviction: If someone suffers from a prior felony conviction for criminal threats, corporal injury, or violating a restraining order, consequently the sentencing range is 1 year in the county jail or up to 5 years in state prison.
- Sex Offender Registration: A sentencing court may order a defendant conviction of a felony under this state to register as a sex offender under PC 290.006. Typically, the court orders registration when the act results from sexual compulsion or for purposes of sexual gratification.
- State Hospital: If the court finds there is reason to believe the defendant suffers from a cognitive disorder, the judge must consider whether a defendant would benefit from treatment in a state hospital. This is usually common when someone has a history of mental illness and may require a psyche evaluation.
CRIMINAL DEFENSE FOR STALKING CHARGES
A conviction for stalking can carry devastating consequences, including having to register as a sex offender. It’s important to retain an experienced Criminal Defense Attorney when faced with such accusations who will conduct an extensive investigation into the case for all viable defenses. If you’re under investigation, or law enforcement seeks to question you, contact the Law Offices of John D. Rogers for a free consultation to discuss your rights and defenses. Our office handles all domestic violence matters in Orange County, Los Angeles, Ventura, San Bernardino, and Riverside counties.
 California Penal Code 646.9(a) defined – (“Any person who willfully, maliciously, and repeatedly follows or willfully and maliciously harasses another person and who makes a credible threat with the intent to place that person in reasonable fear for his or her safety, or the safety of his or her immediate family is guilty of the crime of stalking, punishable by imprisonment in a county jail for not more than one year, or by a fine of not more than one thousand dollars ($1,000), or by both that fine and imprisonment, or by imprisonment in the state prison.”)
 See People v. McClelland (1996) 42 Cal.App.4th 144, 150 [rejecting the claim that PC 646.9(b) is unconstitutionally vague].
 See CALCRIM No. 1301.